There's No Standing in a Coffin
Yet when a good doctrine is combined with those dreaded words, the majority opinion written by Justice Alito, it's enough to send chills down one's spine. That happened in the Supreme Court's 5-4 reversal in Clapper v. Amnesty International, challenging the constitutionality of §1881a surveillance under the Foreign Intelligence Surveillance Act of 1978, as amended in 2008.
This is the nice way of saying that an ex parte determination by a secret court is good enough to overcome constitutional objections. The respondents, having prevailed before the Second Circuit after the district court held they lacked standing, argued that they were engaged in international communications with the sort of folks they believed the government likely to target under FISA, and in order to avoid being wiretapped and surveiled, were constrained to engage in more extreme measures to protect their privacy.
Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA),50 U. S. C. §1881a, added by the FISA Amendments Act of 2008,permits the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.
And so they sued.
Justice Alito was not impressed, as were the other four justices siding with him.
Yeah, well, that's usually a pretty good thing. The problem here is that between the secrecy of targets under FISA and various privileges that would keep it concealed, nobody can ever say that their privacy was violated. In other words, nobody will ever have standing and therefore no one will ever be able to challenge the constitutionality of §1881a surveillance.
To establish Article III standing, an injury must be "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___. "[T]hreatened injury must be ‘"certainly impending" ’ to constitute injury in fact," and "[a]llegations of possible future injury" are not sufficient. Whitmore v. Arkansas, 495 U. S. 149, 158.
In the New York Times, Adam Liptak points out that this hurdle of Standing has graver ramifications:
While many folks think that groups like Amnesty International and the American Civil Liberties Union have some sort of magic authority to challenge anything, they are subject to the same rules of Standing as anyone else. Though they may exist for the purpose of challenging the actions of the government, they suffer neither greater, nor lesser, harm than does any person subject to the law. And whether one can argue that an unconstitutional law confers standing on every American or none, absent a particularized injury suffered, has now been answered. By Justice Alito.
More broadly, the ruling illustrated how hard it is to mount court challenges to a wide array of antiterrorism measures, including renditions of terrorism suspects to foreign countries and targeted killings using drones, in light of the combination of government secrecy and judicial doctrines limiting access to the courts.
“Absent a radical sea change from the courts, or more likely intervention from the Congress, the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantánamo,” said Stephen I. Vladeck, a law professor at American University.
While the fact that no one may ever be capable of asserting standing might concern some, it doesn't bother Justice Alito at all.
Does it bring anyone comfort that the courts, although operating in secret, have us covered? Me neither. But the Court noted that it's not entirely hopeless:
Justice Alito wrote that the prospect that no court may ever review the surveillance program was irrelevant to analyzing whether the plaintiffs had standing. But he added that the secret court does supervise the surveillance program.
While Judy Tenuta might say, "it could happen," ACLU lawyer Jameel Jaffer is not as optimistic.
It is also at least theoretically possible, he added, that the government will try to use information gathered from the program in an ordinary criminal prosecution and thus perhaps allow an argument “for a claim of standing on the part of the attorney” for the defendant.
Though Standing may well be a good thing in general, it's now pretty much an insurmountable hurdle to challenging the government's more creative and covert conduct. That the government can enact laws beyond challenge presents an intolerable condition.
Mr. Jaffer said the situations were far-fetched.
“Justice Alito’s opinion for the court seems to be based on the theory that the secret court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come,” Mr. Jaffer said. In many national security cases, he added, the government has prevailed at the outset by citing lack of standing, the state secrets doctrine or officials’ immunity from suit.
While Justice Breyer, in dissent, argues that the harm is "not speculative," as "it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen,” that's a bit too chaos theory. The larger point is that the government should never be capable of giving itself power that cannot be legally questioned. Indeed, it seems that such extreme authority, which inherently defies due process, is by definition unconstitutional.
But after the 5-4 refusal to hear Clapper v. Amnesty International, we will never know. Hear that sound? It's the slam of the coffin shutting, and we're inside.